Legal Analysis of Bill C-81, An Act to ensure a barrier-free Canada DRAFT REPORT FOR COMMENT

Transcription

1 Legal Analysis of Bill C-81, An Act to ensure a barrier-free Canada DRAFT REPORT FOR COMMENT August 13, University Avenue, 15th Floor Toronto, Ontario M5J 2H7 (416) (Main) 1 (866) 482-ARCH (2724) (Toll Free) (416) (TTY) 1 (866) 482-ARCT (2728) (Toll Free) (416) (FAX) 1 (866) 881-ARCF (2723) (Toll Free)

2 TABLE OF CONTENTS INTRODUCTION... 4 ABOUT THIS REPORT... 4 ABOUT ARCH... 5 SUMMARY OF KEY ISSUES... 6 PREAMBLE AND PURPOSE... 7 SECTION 5: PURPOSE... 8 Dates and Timelines... 8 Areas in which Accessibility Standards will be Developed... 9 SECTION 6: PRINCIPLES SECTION 2: DEFINITIONS PART 1: MINISTER S POWERS, DUTIES AND FUNCTIONS (sections 4, 11-16) PART 2: CANADIAN ACCESSIBILITY STANDARDS DEVELOPMENT ORGANIZATION (sections 17-36) PART 3: ACCESSIBILITY COMMISSIONER (sections 37-41) PART 4: DUTIES OF REGULATED ENTITIES (sections 42-72) Broadcasting Organizations Canadian Carriers and Telecommunications Service Providers Transportation Carriers All Other Regulated Entities Elements of Part 4 that Require Strengthening PART 5: ADMINISTRATION AND ENFORCEMENT (sections 73-93) PART 6: REMEDIES (COMPLAINTS TO THE ACCESSIBILITY COMMISSIONER) (sections ) Accessibility Complaint Process and its Interaction with Human Rights Complaints. 31 PART 7: CHIEF ACCESSIBILITY OFFICER (sections ) PART 8: REGULATIONS (sections ) Regulations Creating Accessibility Standards Limited Application of Regulations Advantages and Disadvantages to Multiple Accessibility Regulations in a Given Area

3 Reviews of the Accessible Canada Act PARTS : RELATED, CONSEQUENTIAL AND COORDINATING AMENDMENTS Diffused Enforcement of Accessibility Standards (sections ) Changes to the Canada Transportation Act: Increased Oversight and Adjudication Powers for CTA Changes to the CRTC Advantages and Disadvantages to Diffused Oversight and Enforcement SIGNIFICANT OMISSION: Barriers for Indigenous Persons with Disabilities APPENDIX A: Progressive Realization APPENDIX B: Jurisdiction over Accessible Transportation Complaints APPENDIX C: CTA`s Legal Approach to Accessible Transportation Complaints

4 INTRODUCTION In 2016, the Government of Canada announced its intention to develop and introduce federal accessibility legislation. On June 20, 2018 the Accessible Canada Act (ACA) was introduced in the House of Commons and passed first reading. The Accessible Canada Act, also known by its full title as An Act to ensure a barrier-free Canada, is presently a bill. It must work its way through the legislative process before becoming law in Canada. 1 Building upon earlier work 2 in relation to federal disability legislation, the Council of Canadians with Disabilities (CCD) asked ARCH Disability Law Centre to coordinate a group of disability rights lawyers from across Canada to develop a legal analysis of the bill. This report is the first draft of the legal analysis. A revised draft of this report will be produced following feedback and comments from the CCD, disability organizations and persons with disabilities. ABOUT THIS REPORT The purpose of this report is to provide the CCD, disability organizations and persons with disabilities with a legal analysis to assist the community in developing an advocacy response to the bill. In addition to this report, the Federal Accessibility Legislation Alliance (FALA) is producing a legal analysis of the ACA, and the Accessibility for Ontarians with Disabilities Act Alliance is producing a brief to Parliament on the ACA. ARCH and the CCD are both partners of FALA. These reports should complement one another and provide a rich set of analyses, issues and recommendations for the community to consider. Nothing in this draft report is intended to contradict the legal analyses and recommendations contained in the reports produced by FALA, the AODA Alliance or other disability organizations. A very short timeline was available for producing this report. The report highlights the following: 1 A copy of the draft bill (Bill C-81) is available online: < 81/first-reading#enH3962>. 2 In 2006, ARCH Disability Law Centre (ARCH) produced a paper entitled A Federal Disability Act: Opportunities and Challenges, which was commissioned by the Council of Canadians with Disabilities (CCD) and the Canadian Association for Community Living (CACL). Available online: CCD < 4

5 elements of the ACA which achieve the goals articulated by the community during the pre-bill consultations; significant gaps which the bill does not address; how the implementation and enforcement mechanisms established by the bill will interact with existing administrative bodies that deal with human rights and accessibility issues; and elements of the bill which require strengthening. Disability rights lawyers from across Canada contributed to research, analysis, writing and revising this first draft of the report. Our team included: Melanie Benard, Disability Rights Lawyer, Co-founder Québec Accessible Jessica De Marinis, Staff Lawyer, ARCH Disability Law Centre Dr. Ruby Dhand, Associate Professor of Law, Thompson Rivers University Kerri Joffe, Staff Lawyer, ARCH Disability Law Centre Laura Johnston, Lawyer, Community Legal Assistance Society Robert Lattanzio, Executive Director, ARCH Disability Law Centre Dulcie McCallum, Expert Advisor on Canada's Delegation (UNCRPD) to the UN; former B.C. Ombudsman and N.S. Privacy Commissioner Joëlle Pastora Sala, Attorney, Public Interest Law Centre Tom Patch, Retired Human Rights Lawyer Lila Refaie, Staff Lawyer, ARCH Disability Law Centre Luke Reid, Staff Lawyer, ARCH Disability Law Centre Mariam Shanouda, Staff Lawyer, ARCH Disability Law Centre Jessica Scifo, Law Student, University of Ottawa Sheila Wildeman, Associate Professor of Law, Dalhousie University ABOUT ARCH ARCH Disability Law Centre (ARCH) is a specialty legal clinic dedicated to defending and advancing the equality rights of persons with disabilities in Ontario. ARCH is primarily funded by Legal Aid Ontario. For over 35 years, ARCH has provided legal services to help Ontarians with disabilities live with dignity and participate fully in our communities. ARCH provides summary legal advice and referrals to Ontarians with disabilities; represents persons with disabilities and disability organizations in test case litigation; conducts law reform and policy work; provides public legal education to disability communities and continuing legal education to the legal community; and 5

6 supports community development initiatives. More information about our work is available on our website: SUMMARY OF KEY ISSUES No Dates and Timelines: The ACA does not include dates or timelines for achieving its purpose of a Canada without barriers, nor does it includes dates or timelines for implementing requirements such as making accessibility standards and other regulations. This report describes key sections which would be strengthened by adding dates or timelines. Use of permissive language: Many sections of the ACA which set out powers to make and enforce accessibility requirements use the language may. The legal effect is to give power to make and enforce accessibility requirements, but not actually require this power to be used. If the language may remains, accessibility standards may never be made into binding law. This report describes key sections which could be changed from may to shall, in order to ensure that accessibility requirements are made and enforced. Areas to trigger accessibility requirements are general: The ACA describes general areas in which barriers must be identified, removed and prevented. These areas do not capture all of the issues identified by persons with disabilities during the pre-bill consultations. This report outlines specific areas which may need their own accessibility standards. Multiple accessibility requirements in each area: The ACA gives powers to more than one agency to create accessibility requirements in most areas. As a result, it is likely that most areas will have more than one accessibility standard or set of requirements. The report describes the advantages and disadvantages of this approach. Diffuse approach to oversight of accessibility standards and adjudication of accessibility complaints: The ACA does not designate one central agency to oversee compliance accessibility requirements and adjudicate accessibility complaints. Instead, enforcement of accessibility standards will be done by multiple agencies, including the Accessibility Commissioner, CRTC, CTA, and grievance adjudicators of the Federal Public Sector Labour Relations and Employment Board. The report describes the advantages and disadvantages to this diffuse approach to enforcement. Failure to sufficiently address intersectionality and poverty: The report describes how the ACA can be strengthened by recognizing and addressing the multiple and 6

7 intersectional barriers experienced by persons with disabilities in relation to their identities and their experiences of poverty. Failure to address unique barriers experienced by Indigenous persons with disabilities and the interaction of the ACA with areas that fall within the jurisdiction of First Nations governments: The report outlines some related preliminary issues. PREAMBLE AND PURPOSE Preambles and purpose sections are important components of legislation. A preamble sets out important facts or considerations that led to the enactment of the legislation. It may also set out goals the legislation aspires to achieve and principles the legislation is meant to implement. A purpose provision sets out the governing principles or policies of the law or the objectives it is meant to achieve. 3 Although different, a preamble and a purpose are both authoritative sources of information regarding the way a law is to be implemented, interpreted and applied. Both are relied upon to understand the legislative intent and values behind a law. They may also be relied on to resolve any ambiguity in the law, determine the scope of the law or generally understand the meaning and effect of legislative language. 4 The ACA contains a strong preamble. The preamble states that the bill adopts a proactive and systemic approach for identifying, removing and preventing barriers to accessibility. It articulates the relationship between the bill and the Canadian Human Rights Act 5, stating that this proactive approach complements the rights of persons with disabilities under the Canadian Human Rights Act. The use of the word complement is important for signalling that the bill is not intended to override or replace existing rights to be free from discrimination under the Charter 6 and the Canadian Human Rights Act. The preamble connects the ACA s barrier removal approach with the Charter s section 15 equality guarantee and the Canadian Human Rights Act s preamble, stating that all people should have equal opportunities and have their needs accommodated without discrimination. The preamble also connects barrier removal with achieving full and equal participation in society for persons with disabilities. 3 Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis, 2014) at Ibid at , ; compare also Legislation Act, SO 2006, c 21 Sch F, s 69; Interpretation Act, RSC 1985, c I-21, s RSC, 1985, c H-6. 6 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 7

8 The preamble recognizes Canada s international human rights obligations under the Convention on the Rights of Persons with Disabilities (CRPD) to take appropriate steps regarding accessibility. This is important because it demonstrates Parliament s intention that the ACA serves to implement CRPD requirements in relation to accessibility. Overall, the preamble contains strong statements connecting the ACA with domestic and international human rights laws. After the bill becomes law, these statements will be helpful if there are disputes about what the ACA means, what it requires organizations to do, or how the law should be interpreted. Courts and administrative tribunals will look to the preamble to guide their interpretation and application of provisions of the ACA. Sections of the ACA must be interpreted and applied in a way that achieves the goals of complementing the right not to be discriminated against under the Canadian Human Rights Act, implementing Canada s accessibility obligations under the CRPD, and achieving full and equal participation of persons with disabilities in Canadian society. The effect of the preamble and purpose sections can be further strengthened by adding sections to the ACA to clarify that nothing in the ACA lessens existing human rights obligations of federally regulated entities under the Canadian Human Rights Act, and that where a conflict arises between the ACA and another law, the law that provides the greatest accessibility for persons with disabilities will apply. The preamble may be further strengthened by incorporating language from the preamble to the CRPD. SECTION 5: PURPOSE Dates and Timelines Section 5 states that its purpose is the progressive realization of a Canada without barriers, within areas that fall to federal jurisdiction. Notably, section 5 does not include a timeline for achieving this purpose. This is a significant omission. Without a timeline for achieving the bill s purpose, there is no assurance that the ACA will have an impact on the lives of persons with disabilities. It is critical to include a timeline for achieving the ACA s purpose. In addition, the absence of a timeline is not in keeping with the concept of progressive realization. Progressive realization is a robust international law concept which requires effective steps to be taken in order to meet accessibility targets. Progressive realization means taking well-planned steps, over time, to fully realize a legal obligation or purpose. Progressive realization requires that accessibility targets or benchmarks are set, timelines for meeting those benchmarks are established, demonstrable steps are taken 8

9 to achieve those benchmarks, and progress is regularly measured and assessed. More detailed information about progressive realization is included in Appendix A of this report. Including a timeline in section 5 is consistent with the concept of progressive realization because it is essential for assessing how well Canada is progressing in achieving the purpose of the bill. The timeline in section 5 should be a specific year or period of time by which the purpose of a Canada without barriers will be achieved. Areas in which Accessibility Standards will be Developed Section 5 states that the purpose of the ACA is to be achieved by the identification, removal and prevention of barriers in employment, the built environment, information and communication technologies, the procurement of goods and services, the delivery of programs and services, transportation, and other areas designated in regulations. Consultation reports and expert interviews done by the Canadian Access and Inclusion Project, the Alliance for an Inclusive and Accessible Canada, the Canadian Association of the Deaf, the Canadian Hard of Hearing Association, and Communication Disabilities Access Canada asked persons with disabilities to identify which issues the ACA should address. In addition to the areas already listed in section 5, a number of consultations reported that the law should address: inclusive and accessible political participation: elections, candidates debates, running for office language rights: designating ASL and lsq as official languages non-discriminatory immigration policy anti-poverty measures, including accessible affordable housing and anti-poverty measures for people who cannot work attitudinal barriers and stigma through education and awareness-raising social and cultural inclusion and participation representation of persons with disabilities in media 9

10 In addition to all the issues listed above, in an earlier paper 7, ARCH recommended that in order to further CRPD implementation, the ACA should also address: access to justice: ensuring that federal courts and tribunals are fully accessible; accessibility of Canada s existing federal income support programs, social security programs, and disability-related tax credits and exemptions: removing any barriers to accessing these programs, and requiring the Government of Canada to develop a national action plan that addresses poverty reduction for persons with disabilities. This plan should address access to adequate food, clothing and clean water; access to appropriate and affordable disability services, assistive devices and other disability-related needs; and access to affordable, accessible housing; and Canada s international cooperation and development programs: ensuring they are inclusive of and accessible to persons with disabilities. People with disabilities have further stated that the ACA should address: supported decision-making accessibility in federal prisons and community-based alternatives to incarceration; a national strategy for inclusive education; and a national strategy for deinstitutionalization. The issues listed above are not explicitly addressed in the ACA. However, the areas included in section 5 are broad enough to capture many of these additional issues. For example, the delivery of programs and services in section 5 could cover elections, some aspects of social and cultural participation, accessibility in courts and tribunals, accessibility of Canada s existing federal income support programs, and accessibility within federal prisons. This is because all of those issues fall within the scope of the delivery of programs and services, which is covered by section 5 of the bill. 7 ARCH Disability Law Centre, Discussion Paper: Proposed Federal Accessibility Legislation and the Convention on the Rights of Persons with Disabilities (8 February 2017) at 5, online: < 10

11 Even though the accessibility standards that are ultimately developed under the ACA may address many of the specific issues raised in the consultations, it is also possible that many of the issues will not be addressed. It would be helpful for the bill to require the development of accessibility standards on certain specific issues. Issues that raise particular disability-related barriers in a particular sector or are of particular concern to disability communities should have their own accessibility standards, so that the particular barriers in these important areas will be addressed. For example, specific accessibility standards could be developed for inclusive and accessible political participation, access to justice, accessibility in federal prisons and community-based alternatives to incarceration, access to federal income support programs, and accessibility in some of the other areas identified in the list above. The community may wish to determine which areas of particular concern we should advocate for having specific accessibility standards. If the community determines that certain particular areas should have their own accessibility standards, it will be necessary to amend the ACA to ensure that these standards will be developed, rather than leaving it to government s discretion. Section 117(1) would need to identify those specific areas. Section 117(1) would need to specify that for the purposes of section 5(g), accessibility regulations must be developed in specific areas, including but not limited to those identified. Section 5 states that one of the areas in which accessibility standards will be developed is the delivery of services and programs. The foreseeable problem in focusing on delivery only is that the substantive objectives or parameters of a program may be put in place before thinking about disability, accessibility and inclusion. To avoid this problem, the section could use language of design and delivery of programs and services. SECTION 6: PRINCIPLES Like the preamble and purpose sections, the principles outlined in section 6 of the ACA will guide the implementation and interpretation of the Act and its regulations. In addition to the principles already included in section 6, the following additional principles could be added to strengthen the ACA, in particular to ensure that barrier identification, removal and prevention is done in a way that recognizes diversity among persons with disabilities and the impact of poverty: Persons with disabilities disproportionately live in conditions of poverty. Women and girls with disabilities experience unique and intersecting barriers to accessibility, which must be recognized and addressed. 11

12 Persons with disabilities are diverse and experience multiple and intersecting barriers to accessibility, as a result of discrimination on the basis of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, martial status, family status, genetic characteristics, and/or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. Multiple and intersectional barriers must be recognized and addressed. Indigenous persons with disabilities experience unique and intersecting barriers to accessibility, as a result of colonialism, racism and systemic discrimination. These barriers must be recognized and addressed. Barrier identification, removal and prevention must be done in accordance with principles of inclusive design and universal design. SECTION 2: DEFINITIONS Section 2 defines disability as a physical, mental, intellectual, learning, communication or sensory impairment or a functional limitation whether permanent, temporary or episodic in nature that, in interaction with a barrier, hinders a person s full and equal participation in society. It is important that the definition of disability be as broad and inclusive as possible to ensure that the law will apply to all persons with disabilities, to new disabilities which may arise and to our evolving understanding of disability. The definition would be made broader and more inclusive by adding disability includes but is not limited to at the beginning of the definition. Similarly, the definition would be broadened by adding whether the disability is evident or not. This would help to ensure that accessibility requirements take barrier removal into account regardless of whether or not the disability is evident. Section 2 defines barrier as barriers that are physical, architectural, technological, attitudinal, based on information or communications, or the result of a policy or practice that hinders full and equal participation in society of persons with physical, mental, intellectual, learning, communication or sensory impairments or functional limitations. Missing from this definition are barriers created by law. The ACA s reach could be extended by adding the word law to section 2, so that barriers created as a result of laws would also be subject to accessibility requirements. 12

13 Section 15(1) of the Charter guarantees that everyone is equal before and under the law and has the right to equal benefit and protection of the law without discrimination. Generally, when governments create new laws, they analyze whether the law respects the Charter s section 15 equality guarantee. Despite this check, governments can still enact laws or programs which discriminate if they can be justified in a free and democratic society (the Charter s section 1 test) or if they are ameliorative (section 15(2) of the Charter). Adding the word law to section 2 would complement the Charter s section 15 equality guarantee. The definition of barrier could also be broadened to recognize how the intersection of disability and Indigeneity, race, culture, ethnicity, gender, sex and other social factors create systemic barriers for people with disabilities. PART 1: MINISTER S POWERS, DUTIES AND FUNCTIONS (sections 4, 11-16) Section 4 provides that the Governor in Council may designate a Minister responsible for the ACA. The word may is permissive; it provides the Governor in Council with legal power to designate a minister, but does not require the Governor to do so. 8 During consultations on the bill, one of the key concerns of persons with disabilities was that the ACA should have strong oversight, enforcement and accountability mechanisms. Key to ensuring that the ACA achieves its purpose is having a minister responsible for the law. Therefore, the word may should be changed to shall. This would require the Governor in Council to appoint a Minister. Like the purpose of the ACA, the mandate of the Minister is the progressive realization of a Canada without barriers (section 11(1)). It is very important to include a date or timeline in section 11(1) for the same reasons that it is important to include a date in section 5 (purpose). The dates in these sections should be the same. Sections 11(2) 16 set out various powers, duties and functions which will enable the Minister to fulfil the mandate. Missing from these sections are duties in relation to 8 Supra note 3 at 81 and 91. Section 11 of the federal Interpretation Act states that the expression shall is to be construed as imperative and the expression may as permissive (RSC 1985, c I-21). The legal effect of a statutory provision that uses may as in the context of the ACA is to confer power on an official to do something. In the absence of express or implied limitation, the conferred power is discretionary, and the official may decide whether or not to exercise their power. In contrast, the effect of shall is to both confer a power to do something and also oblige it to be done. A person who shall do something has no discretion to decline. 13

14 fulfilling the progressive realization component of the Minister s mandate. As outlined on pages 8-9 of this report, progressive realization requires that accessibility targets or benchmarks are set, demonstrable steps are taken to achieve those benchmarks, and progress is regularly measured and assessed. The following duties could be added to the ACA to ensure that the Minister implements the progressive realization requirement: a requirement that the Minister will establish benchmarks for progressively realizing a Canada without barriers by the date that should be specified in the ACA; a requirement to establish progressive timelines for meeting these benchmarks; a requirement that progress towards meeting these benchmarks is regularly assessed. In this respect section 15 could be changed to: Subject to the Statistics Act, the Minister shall collect, analyse, interpret, publish and distribute information in relation to matters relating to accessibility. An additional subsection could be added to the bill requiring the Minister to collect, analyse, interpret, publish and distribute information regarding progress being made towards meeting established benchmarks within the time specified in the Act. There is a dearth of information on the rates of disability among persons from ethnoracial communities and the unique barriers they face. Section 15 could require the Minister to collect and analyze such data in order to better understand the accessibility needs of these groups. Section 16 provides that the Minister may coordinate accessibility efforts with the provinces and territories. The coordination and consistency of accessibility requirements across the country was highlighted as an important consideration in several of the prebill consultations. The word may in section 16 should be changed to shall to ensure that the federal Minister will coordinate accessibility efforts with the provinces and territories. In addition, consultation with First Nations communities is essential, especially where self-government models are in place. Consideration should be given to include an additional responsibility for the Minister in the bill, namely the provision of clear language information setting out which organizations have accessibility requirements that apply to them, and what those requirements are. (For more information see page 36 of this report). 14

15 PART 2: CANADIAN ACCESSIBILITY STANDARDS DEVELOPMENT ORGANIZATION (sections 17-36) Part 2 of the bill establishes the Canadian Accessibility Standards Development Organization (CASDO). Among other things, CASDO has responsibility for developing and revising accessibility standards (section 18(a)). CASDO then recommends the accessibility standards to the Minister (section 18(b)). These standards may become law if the Governor in Council enacts them into regulations (section 117(1)(c)). Regardless of whether the standards become law, CASDO must make the standards public (sections 18(c), (e), 19(e), 20, 34). It is likely that the accessibility standards which CASDO develops will be made public before they are enacted into law. This will provide organizations with an opportunity to voluntarily adopt or follow accessibility standards, even before they are legally obligated to do so. The bill establishes CASDO as an agent of the government (section 17(2)). Section 21(1) further provides that the Minister may issue general directions to CASDO regarding how it carries out its mandate. Under Part 2, the Minister will have close control over CASDO and the Board of Directors will be appointed by government (section 23(1)). CASDO must submit an annual report on its activities to the Minister (section 36(1)), and the Minister must table this report in Parliament (section 36(2)). It is important that CASDO be independent from government to allow it to carry out its mandate for developing and revising accessibility standards unencumbered by the political and policy priorities of the government of the day. To achieve this, section 17(2) could be amended to say that CASDO is an organization independent or at arms-length from government, and section 21(1) could be removed from the bill. CASDO s independence could also be attained through fixed term appointments of directors, with removal based on a good behaviour or competence standard. Rather than reporting to the Minister, CASDO should report to Parliament directly. There is no requirement that persons with disabilities be represented among the Board of Directors of CASDO. Instead, section 23(2) states that as far as possible, the majority of the directors should be persons with disabilities. There is no provision in the bill which requires CASDO staff to be persons with disabilities. The current language is not strong enough to ensure sufficient representation of persons with disabilities on CASDO. Section 18 provides that CASDO must develop and revise accessibility standards, but does not set any timelines for doing so. Section 18 could be strengthened by including timelines for developing accessibility standards. A timeline should also be included for reviewing accessibility standards (for example, CASDO will review each accessibility standard five years from the day on which it was created). 15

16 PART 3: ACCESSIBILITY COMMISSIONER (sections 37-41) The bill creates an Accessibility Commissioner that has responsibilities for enforcing the law and accessibility standards; receiving and addressing complaints that organizations have not complied with the accessibility standards (section 94 and on); and monitoring and reporting on the enforcement of the law. Part 3 deals with the Accessibility Commissioner s monitoring functions, which include providing information and advice to the Minister about the enforcement of the law (section 37), complaints that are filed under the law (section 39(2)(a)(v)) and emerging systemic accessibility issues (section 39(2)(b)). Part 6 deals with the Accessibility Commissioner s enforcement responsibilities and responsibilities to receive and address complaints. The Accessibility Commissioner is a member of the Canadian Human Rights Commission (section 2). As such, the Accessibility Commissioner is not wholly independent from government, but does enjoy a significant degree of independence. 9 The community will need to consider whether the Accessibility Commissioner should be a fully independent body. Each year, the Accessibility Commissioner must report to the Minister responsible for the ACA and the Minister of Justice on its enforcement activities, including inspections of compliance with accessibility standards, orders requiring organizations to comply with accessibility standards, notices of violation of accessibility standards, and accessibility complaints (section 39(2)). The Minister must table this annual report in Parliament (section 39(3)), and it will therefore be publicly available. This section could be strengthened by requiring the Accessibility Commissioner to report to Parliament instead of the Minister. This would provide the Accessibility Commissioner with a greater degree of independence. Section 39(2)(v) states that the Accessibility Commissioner must include in the annual report information about the complaints filed. This section could be strengthened to also include information on how complaints were resolved or addressed. 9 The Canadian Human Rights Commission by its conduct and custom seeks to remain independent but is not guaranteed that independence by law. Commissioners of the Canadian Human Rights Commission are independent in the sense that they report to Parliament through the Speaker, rather than to the Minister of Justice, who is otherwise responsible for the Canadian Human Rights Act. Commissioners enjoy relatively high security of tenure. Commissioners are appointed for terms not exceeding seven years if full time or 3 years if part time, and may be removed prior to expiry of their term only on breach of good behaviour and by a joint address to the House and Senate. This is a protection typically reserved for judges. On the other hand, Commissioners are appointed by government, and in this sense are not fully independent. See: Canadian Human Rights Act, supra note 5 at ss. 61,

17 In addition, the Accessibility Commissioner may provide the Minister with special reports in relation to its enforcement and complaint responsibilities (section 38(1)). The Commissioner has discretion to decide whether to make special reports public (section 38(2)). Section 38(2) could be strengthened to say that special reports must be made public. PART 4: DUTIES OF REGULATED ENTITIES (sections 42-72) The ACA requires organizations and service providers to prepare and publish accessibility plans, feedback processes and progress reports. Depending on the type of accessibility plan, these documents are regulated and overseen by the Minister responsible for the ACA, the Accessibility Commissioner, the Canadian Radio-television and Telecommunications Commission (CRTC), and/or the Canadian Transportation Agency (CTA). More detailed information on this is provided below, on pages Although accessibility plans are regulated and overseen by various agencies, there are common requirements that all regulated organizations and service providers must fulfill. All organizations must consult with persons with disabilities when preparing their accessibility plans and their progress reports (sections 42(4), 47(4), 51(4), 56(4), 60(4), 65(4), 69(4) and sections 44(3), 49(3), 53(3), 58(3), 62(3), 67(3), 71(3)). They must make these documents available to people who request them (sections 42(7), 44(6), 47(7), 49(6), 51(7), 53(6), 56(7), 58(6), 60(7), 62(6), 65(7), 67(6), 69(7), 71(3), 71(6)). These requests must be in the format and manner specified by regulations (sections 42(7), 47(7), 44(6), 49(6), 51(7), 53(6), 56(7), 58(6), 60(7), 62(6), 65(7), 67(6), 69(7), 71(6)). In their feedback processes, all organizations must explain how they will receive and deal with feedback about the way they are implementing their accessibility plans and the barriers encountered by persons who deal with their organizations (sections 43, 48, 52, 57, 61, 66, 70). In their progress reports, all organizations must explain how they are implementing their accessibility plans (sections 44(1), 49(1), 53(1), 58(1), 62(1), 67(1), 71(1)). They must also include information about any feedback they received and how they dealt with that feedback (sections 44(5), 49(5), 53(5), 58(5), 62(5), 67(5), 71(5)). 17

18 Broadcasting Organizations The ACA requires broadcasting organizations to prepare and publish two sets of accessibility plans, feedback processes and progress reports. The CRTC oversees one set, and the Accessibility Commissioner oversees the other set. The accessibility plans overseen by the CRTC must address: the organization s policies, programs, practices and services for identifying, removing and preventing barriers in information and communications, the procurement of goods and services, and the delivery of programs and services. Organizations that are not already subject to employment equity laws must include employment equity in their accessibility plans. (section 42(1)(a)); and conditions of the organization s license, any order under the Broadcasting Act 10 and any regulations under the Broadcasting Act that relate to barrier identification, removal and prevention (sections 42(1)(b), (c) and (d)). These plans must be updated every 3 years or on a date set by regulations made by the Canadian Radio-television and Telecommunications Commission (CRTC) (section 42(2), 46(1)). The ACA empowers the CRTC to make regulations regarding timelines for developing these plans, the form the plans must take, the manner in which the plans are published, and the form and manner of the feedback processes and progress reports (section 45). The CRTC is also empowered to exempt any broadcasting organization or group of broadcasting organizations from developing these accessibility plans, feedback processes or progress reports (section 46(1)). The accessibility plans overseen by the Accessibility Commissioner must address: the organization s policies, programs, practices and services regarding barrier identification, removal and prevention in employment, the built environment, transportation and any requirements contained in accessibility regulations made under the ACA (section 47(1)(a) and (b)). These plans must be updated every 3 years or on a date set by regulations made under the ACA (section 47(2), 117(1)). The ACA empowers the Minister to make an order exempting any broadcasting organization or class of organizations from developing these accessibility plans, feedback processes or progress reports (section 50(1)). 10 SC 1991, c

19 Canadian Carriers and Telecommunications Service Providers The ACA requires Canadian carriers and telecommunications providers to prepare and publish two sets of accessibility plans, feedback processes and progress reports. The CRTC oversees one set, and the Accessibility Commissioner oversees the other set. The accessibility plans overseen by the CRTC must address: the provider s policies, programs, practices and services for identifying, removing and preventing barriers in information and communications, the procurement of goods and services, and the delivery of programs and services (section 51(1)(a)); and conditions that relate to barrier identification, removal and prevention which are imposed under the Telecommunications Act 11 or regulations under that law (section 51(1)(b)(c)). For these accessibility plans, providers must prepare and publish an updated plan every 3 years or on a date set by regulations made by the CRTC (section 51, 92, 54(1)). The ACA empowers the CRTC to make regulations regarding timelines for developing the plan, the form the plan must take, the manner in which the plan is published, the form and manner of the feedback process and progress reports (section 54). The CRTC is also empowered to exempt any Canadian carrier or telecommunications provider or group of providers from developing these accessibility plans, feedback processes or progress reports (section 55(1)). The accessibility plans overseen by the Accessibility Commissioner must address: the provider s policies, programs, practices and services regarding barrier identification, removal and prevention in employment, the built environment, transportation and any other requirements contained in accessibility regulations made under the ACA (section 56(1)(a) and (b)). For these accessibility plans, organizations must prepare and publish an updated plan every 3 years or on a date set by regulations made under the ACA (sections 56(2), 117(1)). 11 SC 1993, c

20 The ACA empowers the Minister to make an order exempting any Canadian carrier or telecommunications provider or group of providers from developing these accessibility plans, feedback processes or progress reports (section 59(1)). Transportation Carriers The ACA requires transportation carriers to prepare and publish two sets of accessibility plans, feedback processes and progress reports. The CTA oversees one set, and the Accessibility Commissioner oversees the other set. The accessibility plans overseen by the CTA must address: the carrier s policies, programs, practices and services for identifying, removing and preventing barriers in information and communications, the procurement of goods and services, the delivery of programs and services, transportation, and certain aspects of the built environment, including passenger aircraft, trains, buses, vessels, aerodome terminals, and railway, bus or marine stations (section 60(1)(a)); and requirements contained in regulations under section 170(1) the Canada Transportation Act 12 (section 60(1)(b)). For these accessibility plans, carriers must prepare and publish an updated plan every 3 years or on a date set by regulations made by the CTA (section 60(2), 63(1)). The ACA empowers the CTA to make regulations regarding timelines for developing these accessibility plans, the form the plan must take, the manner in which the plan is published, the form and manner of the feedback process and progress reports (section 63). The CTA must have the recommendation of the Minister of Transport and the approval of the Governor in Council to make these regulations. The CTA is also empowered to exempt any transportation carrier or group of carriers from developing these accessibility plans, feedback processes or progress reports (section 64(1)). The accessibility plans overseen by the Accessibility Commissioner must address: the carrier s policies, programs, practices and services regarding barrier identification, removal and prevention in employment, any requirements contained in accessibility regulations made under the ACA, and the built environment other than passenger aircrafts, trains, buses, vessels, aerodome terminals, and railway, bus, or marine stations (section 65(1)(a)); and 12 SC 1996, c

21 requirements contained in accessibility regulations made under the ACA (section 65(1)(b)). For these accessibility plan, carriers must prepare and publish an updated plan every 3 years or on a date set by regulations made under the ACA (section 65(2), 117(1)). The ACA empowers the Minister to make an order exempting any transportation carrier or group of carriers from developing these accessibility plans, feedback processes or progress reports (section 68(1)). All Other Regulated Entities All other regulated entities includes certain entities named under the Financial Administration Act, 13 the federal public administration, the Canadian Forces, any person, partnership or unincorporated organization or person acting on their behalf that operates within federal jurisdiction, and certain Parliamentary entities (section 7). These organizations must prepare and publish accessibility plans, feedback processes and progress reports, which are overseen by the Accessibility Commissioner. The accessibility plans must address: the organization s policies, programs, practices and services for identifying, removing and preventing barriers in information and communications, the procurement of goods and services, and the delivery of programs and services, employment, the built environment, transportation (section 69(1)(a)); and any requirements contained in accessibility regulations made under the ACA (section 69(1)(b)). Plans must be prepared, published and updated every 3 years or on a date prescribed by regulations made under the ACA (section 69(2)). The ACA empowers the Minister to make an order exempting any regulated entity or group of entities from developing the accessibility plans, feedback processes or progress reports (section 72(1)). 13 RSC 1985, c F

22 Elements of Part 4 that Require Strengthening No Requirement to Prepare Accessibility Plans until Regulations Created Sections 42(1), 47(1), 51(1), 56(1), 60(1), 65(1), and 69(1) require different organizations to prepare and publish accessibility plans within one year after a day determined by regulations made by the Minister, CRTC or CTA. The ACA allows but does not require the Minister, CRTC or CTA to make these regulations. This is because the sections in the bill that establish powers for the CRTC, CTA and Minister to create regulations all use the permissive language may (sections 45, 54, 63, 117). If the regulations are not made, then the one year timeline for preparing and publishing accessibility plans will not begin to run, and the obligation to prepare plans will not be triggered. There are two ways to address this: First, the permissive language (may) in sections 45, 54, 63 and 117(e) (f) (g) and (h), could be changed to directive language (shall). This would require the CRTC, CTA and Minister to make regulations, rather than permit them to do so at their discretion. The relevant sections of the bill would also need to include a timeline by which the regulations would be enacted, to ensure that the regulations are enacted relatively quickly, which would then trigger the requirement for organizations to prepare and publish their accessibility plans. Second, sections 42(1), 47(1), 51(1), 56(1), 60(1), 65(1), and 69(1) could be amended to include a timeline for preparing and publishing accessibility plans regardless of whether the relevant regulations have been made. One advantage of this approach is that organizations would likely prepare and publish their accessibility plans more quickly than if they were required to wait for regulations to be made. One disadvantage is that accessibility plans may need to be changed later on, to meet the regulatory requirements once the regulations have been made. No Requirement to Publish Feedback Process Until Regulations Created The bill requires regulated entities in all sectors to establish and publish feedback processes. However, publishing must be done in accordance with the relevant regulations (sections 43(2), 48(2), 52(2), 57(2), 61(2), 66(2)). Again, these regulations are not required to be made, because the bill uses the language may. If regulations are not made, feedback processes will not be published. This issue could be addressed by requiring the relevant regulations to be made within a specific timeframe. Broad Powers to Exempt Organizations in all Sectors from Preparing Accessibility Plans 22

23 The bill empowers the Minister, CRTC or CTA to exempt any organization or group of organizations from the requirement to prepare and publish accessibility plans, create feedback processes and develop progress reports (sections 46(1), 55(1), 64(1), 68(1)). It is not clear why it may be necessary to exempt some organizations from complying with these requirements. Any exemption would weaken the overall purpose of the ACA. Further explanation on this point should be sought from government. If there are legitimate reasons for exemptions, then significant checks and safeguards should be included in the ACA. For example, exemptions should happen only in the narrowest circumstances, after the Minister, CRTC or CTA has provided reasons or rationale for the exemption, these reasons have been made pubic, and the public has had an opportunity to provide feedback. Any exemptions that are created should be subject to review to ensure that they are still needed. Accessibility Plans and Progress Reports Made Available Only if Conditions Met The bill requires organizations to make their accessibility plans available to people who request them. However, individuals must make this request in the format and manner specified by regulations. If the correct format and manner are not used, the organization need not provide the accessibility plan. The same is true for progress reports (sections 42(7), 47(7), 44(6), 49(6), 51(7), 53(6), 56(7), 58(6), 60(7), 62(6), 65(7), 67(6), 69(7), 71(6)). In addition, the regulations specifying the format and manner for requesting accessibility plans and progress reports are not required to be made, since the relevant provisions use the language may. This issue could be addressed if the bill was amended and simplified so that accessibility plans and progress reports must be made available upon request. There is no need to specify the format and manner of these requests. Provisions to Strengthen Accessibility Plans Part 4 requires regulated entities to prepare and publish accessibility plans that address barrier identification, removal and prevention in various areas. To maximize their effectiveness, accessibility plans should be prepared with a goal or purpose in mind. The goal or purpose will determine much of the scope and detail of the plan. The ACA s purpose is to progressively realize a Canada without barriers. The ACA could make it clear that accessibility plans must relate to the purpose of the law. Plans should address how they will contribute to achieving a Canada without barriers by the date which should be included in the ACA, and how they will implement progressive realization. Accessibility plans could not only identify barriers, they could set 23